Case o' The Week: The Ninth Giveth and SCOTUS Taketh Away (then the Ninth Giveth Again!) - Baldon and California Carjacking

Hon. Judge Mark Bennett

  Lost a win, then won again!

United States v. Baldon, 2020 WL 1921963 (9th Cir. April 21, 2020), decision available here.

Players: Decision by Judge Bennett, joined by Judge Lee and D.J. Piersol.

Facts: Baldon pleaded guilty to possession with intent to distribute meth, in violation of 21 USC § 841(a)(1) and (b)(1)(C). Id. at *1. Using a “modified categorial approach,” the district court looked at charging documents for Baldon’s prior California carjacking convictions, to determine whether they were crimes of violence under USSG § 4A1.1(e). Id. at *2. (The carjacking statute is California Penal Code Section 215).

  After finding the prior convictions were crimes of violence, the district court imposed a two-point increase to Baldon’s criminal history, and sentenced Baldon to 184 months. Id.

   A previous Ninth Circuit decision, Solorio-Ruiz, had held that California carjacking is not a crime of violence under a different statute. See Solorio-Ruiz v. Sessions, 881 F.3d 733 (9th Cir. 2018). See id. at *2. After sentencing, the Supreme Court decided Stokeling v. United States, –––U.S. ––––, 139 S. Ct. 544, 202 L.Ed.2d 512 (2019). On appeal, the government argued Stokeling undermined the rational of Solario-Ruiz.

Issue(s): “[W]hether Baldon’s prior convictions for carjacking under section 215 1 of the California Penal Code qualify as crimes of violence under U.S.S.G. § 4A1.1(e) . . . .” Id. at *1. “Can a section 215 conviction be based on fear of injury to property alone?” Id. at *5.

Held: The Supreme Court’s clarification of ‘violence force” in Stokeling as “any force sufficient to overcome a victim’s physical resistance) is “clearly  irreconcilable” with our reasoning in Solorio-Ruiz. Our  opinion rested on the analytical distinction between substantial and minimal force. This distinction no  longer exists. See Ward v. United States, 936 F.3d 914, 919 (9th Cir. 2019). As a result, Solorio-Ruiz’s holding is no longer good law.” Id. at *3.

 But . . .

  “We hold that section 215 is not a categorical crime of violence, and thus the district court erred in calculating Baldon’s sentence.” Id. “Baldon argues that section 215 may be violated through fear of injury to property alone, without any fear of injury to a person, and therefore, the statute “criminalizes a broader range of conduct than the federal definition captures.” Edling, 895 F.3d at 1155. We agree.” Id. at *5.

Of Note: The Ninth giveth, the Ninth taketh away. While Baldon won the “crime of violence” issue, he lost a challenge to a two-level enhancement for possessing a gun during the offense. See id. at *8 (citing USSG § 2D1.1(b)(1)). The gun was in a backpack that contained drugs, found in a storage unit tied to Baldon. Id.   

  Distinguishing some (good) Ninth law, Judge Bennet finds that Baldon has “constructive possession” of the gun, and upholds the two-level bump. Id. at *9. The gun-increase under Section 2D1.1 is a fuzzy, fact-specific spectrum: for better or worse, Baldon is another entry in that continuum.

How to Use: The government beefs about the Ninth’s carjacking decision, complaining there have been no published California decisions citing the statutory definition of fear (that is, no decisions permitting a carjacking conviction when there was fear of injury to property). Id. at *6. Judge Bennett is unimpressed. As he explains, “[W]e can rely, and have previously relied, on unpublished California cases to show that the state has applied the statute in a non-generic manner. . . . And, importantly, the jury instructions routinely used by California courts include fear of injury to property. It would be one thing if the fear of injury to property element were simply invented by creative defense lawyers. It is quite another when that element is part of the standard California jury instructions that are perhaps given in every case.” Id. at *8 (citations omitted).

  Use Baldon to brush back on the government’s unduly restrictive view of the state law, used to show a “realistic probability” that a state offense is broader than the generic definition of a crime.

                                               

For Further Reading: “As district attorneys around the Bay Area are breaking character and releasing hundreds of pretrial detainees to prevent the spread of COVID-19 in jails, the local wing of the U.S. Department of Justice has taken a strikingly different tack. Amid the global pandemic — and as cases of the novel coronavirus mount across California and the United States — the U.S. Attorney’s Office for the Northern District of California has refused to release almost any of the more than 400 federal inmates held in the Santa Rita Jail, most of whom have been charged with crimes but not yet convicted.” Nate Gatrell, Santa Rita Jail houses hundreds of federal detainees. Despite COVID-19 outbreak, U.S. Dept. of Justice has opposed releasing all but one, San Jose Mercury News, Apr. 24, 2020. 

  For a thoughtful piece on a deeply troubling policy from the NorCal USAO, see Mr. Gatrell’s article here.

Image of the Hon. Judge Mark Bennett from http://the.honoluluadvertiser.com/dailypix/2008/Nov/21/hawaii81121049V3_b.jpg

Image of "Free them All Empty Santa Rita" from https://www.vox.com/2020/4/22/21228146/coronavirus-pandemic-jails-prisons-epicenters 

Steven Kalar, Federal Public Defender N.D. Cal. Website at www.ndcalfpd.org

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Case o' The Week: C.O.V. (without the "V") - Dominguez and Attempted Hobbs Act Robbery as Crime of Violence

  Dissent's cordial contempt, for attempt, attempt.

United States v. Monico Dominguez, 2020 WL 1684084 (9th Cir. Apr. 7, 2020), decision available here.

Players: Decision by Judge Silverman, joined by visiting S.D. District Judge Anello.

  Compelling dissent by Judge Nguyen.

  Hard-fought appeal by ND Cal CJA attorney Gene Vorobyov.  

Facts: Dominguez and a co-conspirator robbed a “Garda” armored car warehouse and made off with nearly a million dollars. Id. at *1. They were not caught.

  About a year later, an informant tipped the FBI off to Dominguez’s plans to pull off another armored car robbery. Id. at *2. The FBI set up a fake crime scene, to make it difficult for Dominguez to drive near the warehouse.

  Armed with a pistol, Dominguez drove to the warehouse to commit the robbery – but called the snitch and nixed the caper after getting within a block, and encountering the FBI “crime scene.” Id.

  He was arrested the next day, and charged with – among other things – attempted Hobbs Act robbery of the warehouse, and a Section 924(c) charge based on that attempt. Id.

Issue(s): Is attempted Hobbs Act robbery a “crime of violence” that will support a Section 924(c) charge?

Held: “We hold that attempted Hobbs Act robbery is a crime of violence under 18 U.S.C. § 924(c)(3)(A).” Id. at *8.

Of Note: With a polite tone and brutal logic, Judge Nguyen’s dissent tears apart the reasoning of the majority’s “attempt” holding. Id. at *9 (Nguyen, J., dissenting). She starts with the obvious: an attempted Hobbs Act robbery can be committed without any actual use, attempted, use, or threatened use of physical force. Id. A defendant can go down for attempted Hobbs Act robbery even if a “substantial step” towards that crime does not involve “physical force” acts necessary for a “crime of violence” designation. Id. at *10. Judge Nguyen then explains how the majority’s analysis “impermissibly bootstraps a defendant’s intent to commit a violent crime into categorizing all attempts of crimes of violence as violent crimes themselves.” Id. at *11.

  Judge Nguyen’s analysis is spot on: this decision should go en banc. Efforts underway for a PFREB.

How to Use: The majority conspicuously avoids deciding whether “[c]onspiracy to [c]omit Hobbs Act robbery is also a crime of violence under 18 U.S.C. § 924(c)(1)(A).” Id. at *8. (Judge Nguyen insinuates the majority’s dodge allowed it to avoid an irreconcilable conflict: the government conceded that conspiracy to commit Hobbes Act robbery is not a crime of violence. She rightly asks, “If conspiracy and attempt have the same intent requirement, how, under the majority’s approach, could the result be different? The majority doesn’t say.” Id. at *11.)

  In any event, seize the government’s concession in Dominguez: conspiracy to commit Hobbs Act robbery is not a crime of violence supporting a Section 924(c) charge.

                                               

For Further Reading: Over two thousand inmates have tested positive for COVID-19 in Ohio prisons. See article here. Over 1,800 inmates have tested positive in one Ohio prison alone. Id. Why has California generally, and Santa Rita Jail specifically, not seen Ohio’s numbers of positive tests? Because Ohio is “testing everyone -- including those who are not showing symptoms – [and is] getting positive test results on individuals who otherwise would have never been tested because they were asymptomatic.” Id. (emphasis added).

   Santa Rita Jail, by marked contrast, is not testing its entire inmate population: its report of positive cases is therefore radically under-inclusive. See Santa Rita Jail COVID-19 website here. (reporting 33 positive inmate and staff cases); see also “Asymptomatic coronavirus cases at Boston homeless shelter raise red flags, available here. 

  For graphs showing the alarming rates of (underreported) positive tests in Santa Rita, see ND Cal APFD’s Candis Mitchell’s analysis here. 

Image of Garda armored car from https://abcnews.go.com/US/fbi-men-shootout-rob-armored-car-broad-daylight/story?id=64822253  

Image of Santa Rita Jail wire fence from https://www.berkeleyside.com/2020/04/01/in-covid-19-move-alameda-county-cut-its-jail-population-a-new-state-policy-could-undermine-that

Steven Kalar, Federal Public Defender, N.D. Cal. Website at www.ndcalfpd.org

Case o' The Week: An Intimidating Opinion - Burke and Johnson COV, Armed Robbery Involving Drugs

  The Ninth's Johnson analysis in Gobert Burke concludes federal offense is a C.O.V.

  United States v. Burke, 2019 WL 6462363 (9th Cir. Dec. 2, 2019), decision available here.

Hon. Judge Carlos Bea

Players: Decision by Judge Bea, joined by Judges Farris and Christen. Hard-fought appeal by AFPD David Ness.

Facts: Burke walked into a Wallgreen’s, pointed a gun at an employee, demanded OxyContin, and left with around 900 pills. Id. After a high-speed car chase, Burke was arrested and charged federally.

  He was charged with armed robbery involving controlled substances, in violation of 18 U.S.C. § 2118(c)(1). Id. Riding that first count was a second, § 924(c) charge. Id.

  Burke pleaded guilty, and later filed a § 2255 (habeas) challenging the § 2118(c)(1) conviction as a “crime of violence” basis for the § 924(c) offense.

Issue(s): “The sole question presented by this appeal is whether the offense of armed robbery involving controlled substances described in 18 U.S.C. § 2118(c)(1) is a crime of violence under 18 U.S.C. § 924(c)(3)(A).” Id. at *1. “Burke argues that robbery involving controlled substances ‘by force or violence or by intimidation’ does not constitute a crime of violence. Although such robbery ‘by force or violence’ would undoubtedly constitute a crime of violence, Burke argues that the least violent form of the offense—robbery involving controlled substances through mere ‘intimidation’—does not meet the requirements for a crime of violence.” Id. at *2.

Held: “We hold that it is.” Id. at *1.

 “There is simply no room to find robbery involving controlled substances under § 2118(a) is anything but a crime of violence under § 924(c)(3)(A)’s elements clause following Gutierrez and Watson’s binding precedent. The least violent form of each offense is the taking of something (money, a motor vehicle, or controlled substances) by intimidation, which under Gutierrez and Watson “necessarily entails” at a minimum the “threatened use of violent physical force” to qualify the offenses as crimes of violence under § 924(c)(3) (A)’s elements clause. Gutierrez, 876 F.3d at 1257; Watson, 881 F.3d at 785. Because robbery involving controlled substances ‘by force or violence or by intimidation’ is a crime of violence, so too is armed robbery involving controlled substances, which requires proof of all the elements of unarmed robbery involving controlled substances. See 18 U.S.C. § 2118(c) (1). Armed robbery involving controlled substances under § 2118(c)(1) thus cannot be based on conduct that involves less force than unarmed robbery involving controlled substances. For these reasons, armed robbery involving controlled substances under § 2118(c)(1) qualifies as a crime of violence under § 924(c)(3)(A).” Id. at *3.

Of Note: The Johnson analysis in Judge Bea’s Burke decision may seem similar to the Johnson analysis in Judge Bea’s recent Gobert decision, discussed in last week’s memo. See Gobert Blog Entry here. 

  These two Johnson decisions are indeed similar. 

  Very similar. 

  Actually, a fair chunk of the Johnson analysis in these two decisions are verbatim repetitions. Compare Burke, 2019 WL 6462363 at *2, with Gobert, 2019 WL 6316678 at *2.

   While the defense bar remains excited about the sea change presented by Johnson and Davis, Burke and Gobert suggest that the Ninth may not quite share our enthusiasm.

How to Use: As in Gobert, in Burke the Ninth held that the least dramatic way of committing this offense – robbing for drugs with a gun, by using “intimidation – necessarily involved the threatened use of violent force.

   Appellate folks gnash their teeth, but the opinions merit some trial brainstorming. Are there opportunities for creative jury arguments on whether “intimidation” really was a “threatened use of violent physical force?”

                                               

For Further Reading: On December 5th the Senate GOP tweeted “Big News”: two more Ninth Circuit judges will be confirmed next week.

Ninth Circuit Judicial Nominees VanDyke and Bumatay

See Senate GOP Tweet here. 

Image of the Honorable Judge Carlos Bea from https://twitter.com/CLSFedSoc/status/933028793241006086

Steven Kalar, Federal Public Defender N.D. Cal. Website at www.ndcalfpd.org

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Case o' The Week: Assault Challenge Worth a Shot - Gobert, Assault, and Johnson

   Is "Assault with a Deadly Weapon" a "crime of violence?"

   Distressingly, yes. 

United States v. Gobert, 2019 WL 6316678 (9th Cir. Nov. 26, 2019), decision available here.

The Hon. Judge Carlos Bea

Players: Decision by Judge Bea, joined by Judges Farris and Christen. Hard-fought appeal by AFPD David Ness, Fed. Defenders of Montana.

Facts: Gobert was driving on a reservation, drinking and using meth with friends. Id. A verbal interaction with another group of men escalated; Gobert shot at their truck with an AR15. Id.

  Among other things, Gobert was charged with 18 U.S.C. § 113(a)(3), assault with a dangerous weapon. Id. In a separate count, he was charged with 18 U.S.C. § 924(c), with the Section 113(a)(3) charge as the basis. Id.

  He plead to the § 924(c) charge, other counts were dismissed, and he was sentenced to five years. Id.

  Later, after Johnson v. United States, 559 U.S. 133 (2010), he filed Section 2255 motion (habeas), attacking the conviction by arguing that the Section 113(a)(3) charge was not a qualifying “crime of violence.” Id.

Issue(s): “The sole question presented by this appeal is whether the offense of assault with a dangerous weapon described in 18 U.S.C. § 113(a)(3) is a crime of violence under 18 U.S.C. § 924(c)(3)(A).” Id. at *1.

  “The Supreme Court has held that to qualify as a “crime of violence” under the elements clause, the offense must have as an element the use, attempted use, or threatened use of “violent [physical] force—that is, force capable of causing physical pain or injury to another person.” Johnson . . . ; Davis, 139 S. Ct. at 2325–26 (applying Johnson to § 924(c)). The question thus is whether the offense defined in the assault with a dangerous weapon statute meets that standard. Under the categorical approach used to make that determination, see Mathis v. United States, 136 S. Ct. 2243, 2248 . . . (2016), the more specific question is whether the least serious form of the offense meets the Johnson standard, see Moncrieffe v. Holder, 569 U.S. 184, 190–91 . . . (2013). If it does, assault with a dangerous weapon qualifies categorically as a crime of violence.”

Held: “We hold that it is.” Id. “There is simply no room to find assault with a dangerous weapon under § 113(a)(3) anything but a crime of violence under § 924(c)(3)(A)’s elements clause following Juvenile Female and Calvillo-Palacios’s binding precedent. The least violent form of each offense is the threat to use violent physical force through the use of a dangerous weapon that reasonably caused a victim to fear immediate bodily injury, which under Juvenile Female and Calvillo-Palacios necessarily entails at least the ‘threatened use of violent physical force’ to qualify the offenses as crimes of violence under § 924(c)(3)(A)’s elements clause. See Calvillo-Palacios, 860 F.3d at 1290; Juvenile Female, 566 F.3d at 948.” Id. at *3.

Of Note: The defense theory in Gobert was that “using a display of force with a dangerous weapon that reasonably causes a victim to fear immediate bodily injury does not necessarily require the use or threatened use of violent force against another as required under Johnson.” Id. at *2.

  Judge Bea rejects that challenge, concluding that Ninth holdings on other “threat” statutes necessarily meant that Section 113(a)(3) required the “threatened use of violent physical force.” Id. at *3. Disappointing, but, as discussed below, a new opportunity?

How to Use: Take a hard look at the § 113(a)(3) jury instructions. See Ninth Cir. Model Jury Instruction 8.7, available here. Curiously, the requirement that the defendant “threatened the use of violent physical force” is not expressly in the model instruction for this offense. 

   Think about these newly-minted, Johnson-required elements when mulling jury instructions, and Rule 29 motions, for this assault offense.

                                           

For Further Reading: Can a crime with a mens rea of “recklessness” quality as an A.C.C.A. “crime of violence?” 

  The Supreme Court will let us know. It recently granted cert. on Walker. See summary here.   

Image of Judge Bea from https://law.stanford.edu/stanford-lawyer/articles/judge-carlos-t-bea-a-measured-view-of-the-law/.

Steven Kalar, Federal Public Defender N.D. Cal. Website at www.ndcalfpd.org

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Case o' The Week: Ninth Very Intentional, on Recklessness - Begay, Recklessness, and Crimes of Violence

  No “crazy pills” were ingested in the writing of this opinion.

The Hon. Judge D.W. Nelson

United States v. Begay, 2019 WL 3884261 (9th Cir. Aug. 19, 2019), decision available here.

Players: Decision by Judge D.W. Nelson, joined by Judge Clifton. Dissent by Judge N.R. Smith. 

  Admirable victory for AFPD “Edie” Cunningham, D. Arizona.

Facts: Begay was convicted of second-degree murder, in violation of 18 USC §§ 1111 and 1153. Id. at *1.

  He was also convicted of discharging a gun during a “crime of violence” (this murder), under 18 USC § 924(c). Id. at *2.

Issue(s): “Begay was convicted of discharging a firearm during a ‘crime of violence’ under 18 U.S.C. § 924(c). On appeal, Begay argues that second-degree murder does not qualify as a ‘crime of violence.’” Id.  

Held: “To determine whether second-degree murder is a ‘crime of violence’ we apply the ‘categorical approach’ laid out in Taylor . . . Based on the facts of this case, it may be hard to understand how the shooting of [the victim,] Ben by Begay might not be a ‘crime of violence.’ Under the categorical approach, however, we do not look to the facts underlying the conviction, but “compare the elements of the statute forming the basis of the defendant’s conviction with the elements of” a “crime of violence.” See Descamps. . . . The defendant’s crime cannot be a categorical ‘crime of violence’ if the conduct proscribed by the statute of conviction is broader than the conduct encompassed by the statutory definition of a “crime of violence.” See id.” Id. at *3.

  “Second-degree murder does not constitute a crime of violence under the elements clause—18 U.S.C. § 924(c)(3) (A)—because it can be committed recklessly.” Id. at *4. “We REVERSE Count Two of Begay’s conviction for discharging a firearm during a “crime of violence” under 18 U.S.C. § 924(c)(1)(A) . . . .” Id. at *6.

Of Note: Judge N.R. Smith begins his dissent by quoting Zoolander: “I feel like I am taking crazy pills.” Id. at *6 (N.R. Smith, J., dissenting).

  In Judge Smith’s view, the majority should have used second-degree murder’s “malice aforethought” requirement as some sort of proxy, that revs-up a reckless-conduct offense into qualifying as a “crime of violence.” He urges this novel “malice aforethought” theory as a new way to find that a reckless second-degree murder is serious enough to be a “crime of violence.” Id.

  Judge Smith’s dissent conspicuously baits the en banc hook. The Ninth shouldn't bite – the dissent doesn’t grapple with the reality of the controlling Ninth Circuit, en banc Fernandez-Ruiz decision, and fails to engage with the Majority’s (correct) reading of Voisine. While this outcome may stick in some craws, Begay’s legal analysis is spot on.   

How to Use: The nub of Begay is this: did the Supreme Court’s 2016 decision in Voisine, holding that a “misdemeanor crime of domestic violence” includes “reckless assaults,” overrule the Ninth’s 2006, en banc Fernandez-Ruiz decision, holding that crimes that can be committed recklessly are not “crimes of violence” under § 16? Id. at *5. 

  In a thoughtful and principled analysis, Judge D.W. Nelson carefully explains that Voisine left this question open. Id. Judge Nelson remains faithful to Ninth Circuit law interpreting 18 U.S.C. § 16 to 18 U.S.C. § 924(c), and – staying true to precedent – continues to hold that a “crime of violence under 18 U.S.C. § 924(c)(3) requires the intentional use of force.” Id.

  Read Begay carefully when considering a “reckless” offense the government argues is a “crime of violence.” Under existing Ninth authority, “reckless” just won’t cut it.

                                               

For Further Reading: Last week a (Latino) Tenderloin drug dealer was sentenced in federal court, in the Northern District of California. See N.D. Cal. USAO Press Release here. 

  A week or so before, the “Federal Initiative for the Tenderloin” (“FIT”) kicked off, with drug charges filed against nine (Latino) defendants in the Tenderloin. See N.D. Cal. USAO Press Release here. 

 Days before that, thirteen (Latino) defendants were charged in a drug trafficking conspiracy, for allegedly selling drugs in the Tenderloin. See N.D. Cal. USAO Press Release here. 

  Substitute “Latino defendant” for “black defendant,” and the USAO's new “FIT"-focus has some Safe Schools déjà vu, all over again. See “For Further Reading,” available here; and here.

Image of the Honorable Judge D.W. Nelson from https://ms-jd.org/blog/article/first-women-dorothy-w-nelson

Image of Zoolander from https://www.looper.com/127320/what-the-cast-of-zoolander-looks-like-today/ .

Image of “Tenderloin National Forest” from https://www.latinousa.org/2012/05/11/tenderloin-national-forest/

Steven Kalar, Federal Public Defender ND Cal. Website at www.ndcalfpd.org

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Case o' The Week: When Push Comes to Shove, No Taylor Love - Perez, CPC Section 243(d), and Crimes of Violence

  Conduct that could send your client to a California prison for decades, on a felony strike? 

 Meh - just an “improbable hypothetical” in the Ninth.

 United States v. Perez, 2019 WL 3022334 (9th Cir. July 11, 2019), decision available here.

Players: Decision by Judge Ikuta, joined by Judge Paez and visiting Judge Siler. 

   Hard-fought appeal by ND Cal AFPDs Jerome Matthews and Elizabeth McKenna.

Facts: In 2017, Perez was convicted in a bench trial of being a felon in possession of a firearm. Id. at *1.

   Perez had previously been convicted of Cal. Penal Code § 243(d), battery resulting in serious bodily injury. Id. at *1. Over defense objection, the district court held that Cal. Penal Code § 243(d) was a crime of violence.    

Issue(s): “Aaron Perez’s appeal of his sentence for being a felon

in possession of a firearm and ammunition raises the question whether a prior state conviction for battery resulting in serious bodily injury, in violation of section 243(d) of the California Penal Code, qualifies as a ‘crime of violence’ as defined in § 4B1.2(a)(1) of the United States Sentencing Guidelines.” Id. at *1.  

Held: “We conclude that it does.” Id.

  “Like [California Penal Code] section 243(c)(2), section 243(d) requires proof of an element that § 242 does not . . . namely that ‘serious bodily injury is inflicted’ on the person of another, Cal. Penal Code § 243(d). Because ‘serious bodily injury’ is defined as ‘a serious impairment of physical condition,’ Cal. Penal Code § 243(f)(4), we must likewise conclude that a person cannot be convicted under § 243(d) ‘unless he willfully and unlawfully applies force sufficient to not just inflict a physical injury on the victim, but to inflict’ a severe physical injury. . . . As a result, section 243(d) ‘fits squarely within the term [crime of violence] by requiring the deliberate use of force that injures another.” Id. at *5 (internal citations and quotations omitted).

Of Note: Unfortunately for Mr. Perez, the Ninth had addressed a previous Cali battery statute that also required proof of significant injury. While battery in California can be accomplished by an unwanted touch, that slight intentional act plus the actual injury requirement pushed this statute over the COV line for Jude Ikuta.

  What is frustrating about this decision is that California appellate courts have described fact patterns that would be viable under this statute, that involve “eggshell defendants” -- a slight non-violent nudge of an elderly victim who falls and breaks a hip would suffice for a Section 243(d) conviction, but would not be a categorical match for the federal Taylor analysis.

  Judge Ikuta is unpersuaded by the California appellate courts and their “technical analysis” of California state law issues. “[I]mprobable hypotheticals,” she opines. Id. at *5.  [It is fun to imagine a County PD arguing Perez’s federal analysis to attack a § 243(d) conviction in a California court].
   Distressingly, the panel doesn’t discuss California cases where offensive touching did result in § 243(d) prosecutions. See, e.g., People v. Myers, (1998) 61 Cal.App. 4th 328 (victim yelled and poked at defendant and defendant pushed victim away defensively; victim slipped and fell on wet pavement and was injured); People v. Finta, 2012 Cal. App. Unpub. LEXIS 7488 (Cal. App. 1st Dist. Oct. 17, 2012) (defendant “shoved” a man on his bicycle when he thought that the cyclist had stolen his personal property; cyclist fell and was injured); People v. Hayes, 142 Cal. App. 4th 175 (Cal. App. 2d Dist. 2006) (defendant kicked a large ashtray, which fell over and hit an officer’s leg causing a cut and bruising) (in Section 243(c) conviction).

   Perez illustrates a growing problem with the Taylor categorical analysis: the “realistic probability, not a theoretical possibility” analysis is a mushy test that is very much in the eye of the appellate beholder.

How to Use: California defense folks, ever plead a client down to a Section 243(d) charge on facts that are not a clean match for the federal categorical analysis? Judge Murguia wants to know. 

  Well, maybe not literally, but in an insightful recent concurrence Judge Murguia calls for plea deals as evidence of the Taylor “realistic probability” analysis. See blog entry here. 

  Tough to find these examples, conceded, but an interesting avenue to explore.   

                                               

For Further Reading: Last week the Honorable Judge Daniel Bress was confirmed as the latest appointment to the Ninth Circuit. See article on Judge Bress here. 

  With his confirmation, the Ninth now has more jurists nominated by President Trump than any other circuit. See article here. 

  Three more Ninth vacancies remain to be filled by January 1, 2020. See Ninth Circuit vacancy report here.  

Image of push from https://www.lisa-legalinfo.com/wp-content/uploads/2015/12/violence151213.jpg .

Steven Kalar, Federal Public Defender, N.D. Cal. Website at www.ndcalfpd.org

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Case o' The Week: "Same either way" not OK - Vederoff and Post-Johnson status of Washington (non)-"Crimes of Violence"

  A downward variance to 60 months, or an upward variance to five years – mirror image, same result, yes?

  

Well, actually, no.

United States v. Vederoff, 2019 WL 4706734(9th Cir. Feb. 1, 2019), decision available here.

Players: Decision by District Judge Gaitan, WD Mo., joined by Judges McKeown and Friedland.

  Big win for AFPDs Alan Zarky and Mohammad Ali Hamoudi, of the Federal Defender for the W.D. of Washington.

Facts: Vederoff plead guilty to a § 922(g) charge pursuant to a plea agreement. Id. at *1. In his plea agreement, he admitted to Washington convictions for second-degree assault, and second-degree murder. Id.  The PSR set his offense level at 24, claiming both of those priors were “crime(s) of violence” that increased the range. Id. 

  The district court rejected Verderoff’s objections to that calculation, but varied downward from the PSR’s calculated range, and imposed a five-year sentence. Id. at *2. The DJ explained that it was a downward variance from a PSR range that was too high, or an upward variance from the defendant’s calculations (without the crimes of violence) that were too low. Id. 

  Vederoff (intriguingly) appealed, despite a plea agreement (an enlightened appellate-waiver policy that merits a look for ND Cal).

Issue(s): “[Vederoff] challenges the district court’s findings that his prior convictions for second-degree assault and second-degree murder under Washington law qualify as ‘crimes of violence’ under section 4B1.2(a) of the United States Sentencing Guidelines.” Id. at *1.

Held: “Our review of the common law, the Model Penal Code, treatises, and the laws of the other states, . . . compels the conclusion that generic aggravated assault does not include assault with intent to commit a felony.” Id. at *4 (citations omitted). “[S]econd-degree assault under Washington law is not a ‘crime of violence’ under U.S.S.G. § 4B1.2.” Id. at *5.

  “Washington’s second-degree murder statute is . . . overbroad when compared with the definition of generic murder, as well as the Model Penal Code and the laws of other jurisdictions.” Id. at *6. “Washington courts have concluded that the statute is indivisible, and we adopt their interpretation here.” Id. “[S]econd-degree murder under Washington law is not a crime of violence under the enumerated clause of U.S.S.G. § 4B1.2(a)(2).” Id. at *7.

  “Having now determined that the proper Guideline range would be 30 to 37 months, we cannot say that the district court’s incorrect calculation of the proper Guideline range was harmless.” Id. at *8.

Of Note: In this case, it drove the D.J. “absolutely nuts as a trial judge to think that things like murder and assault with a deadly weapon could be conceived as not being crimes of violence.” Id. at *2. He tried a belt-and-suspenders “appellate insurance” policy – the District Judge assured us that 60 months was the right sentence, and it could be deemed either an upward or downward variance from the correct guideline range, depending on the outcome of the Johnson analysis.

   The Ninth was unpersuaded. 

  The appellate court couldn’t deem the five-year term as “harmless,” because it wasn’t clear why the sentence was so high above the (correct) guideline calculations. Id. at *8. 

  Vederoff is the latest (welcome) example of District Court / Appellate cat-and-mouse, as D.J.s try to immunize their sentences from categorical attack -- and the Ninth reminds us who ultimately calls shots. See, e.g. Gardenhire blog here. 

How to Use: Visiting, out-of-circuit, Senior D.J.s making big Ninth law can be troubling (except when we like the outcome). Vederoff falls squarely into that exception -- the Hon. Judge Gaitan is always welcome West. 

  In Vederoff, Judge Gaitan pens a particularly thoughtful analysis of highly technical categorical challenges. For anyone working through a post-Johnson categorical analysis (and who isn’t?), it is a well-written opinion that merits a close read – useful cites abound. See, e.g., id. at *6 (“Facial overbreadth like that here . . . is a basis for finding a statute overbroad.”)

                                               

For Further Reading: The Sentencing Commission is 28% staffed. See USSG Commissioner’s page here. (Not that we're complaining). 

   The President’s 2018 Commission nominees? Sent back from the Senate last January. See e.g. Nomination Report on Judge Henry Hudson, available here. (Not that we’re in any rush . . . )

Image of Escher’s “Drawing Hands” from https://en.wikipedia.org/wiki/File:DrawingHands.jpg

Image of "belt and suspenders" from https://www.jjsuspenders.com/blogs/suspenders/46554561-why-you-should-never-wear-suspenders-with-a-belt  

Steven Kalar, Federal Public Defender N.D. Cal. Website at www.ndcalfpd.org

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